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If you have a loved one who is unable to make decisions or manage their affairs due to a mental or physical disability, you may be wondering how to protect their best interests and ensure their well-being. One option is to seek a legal guardianship, which is a court-ordered arrangement that gives you the authority to act on behalf of your loved one in certain matters.

However, guardianship is not a simple or straightforward process. It involves a lot of paperwork, court hearings, and legal fees. It also requires you to prove that your loved one is incapacitated and that you are the best person to be their guardian. Moreover, guardianship can have a significant impact on your loved one’s rights and autonomy, as well as your relationship with them.

In this blog post, I will explain the basics of adult guardianship law in New York, and give you some tips on how to navigate the complexities and challenges of this process. I hope this will help you make an informed decision and prepare you for what lies ahead.

What is adult guardianship?

Adult guardianship is a legal process that allows a person or an entity to make decisions and manage affairs for another person who is unable to do so for themselves. The person who needs a guardian is called the incapacitated person (IP), and the person or entity who is appointed by the court to be the guardian is called the guardian.

There are two types of adult guardianship in New York: Article 17-A guardianship and Article 81 guardianship.

Article 17-A guardianship

Article 17-A guardianship is for adults who are intellectually or developmentally disabled, and who need a guardian to make all decisions for them. This type of guardianship is usually initiated by the IP’s parents or relatives, and is based on the IP’s diagnosis rather than their functional abilities. The court will appoint a guardian without holding a hearing, unless someone objects to the petition. The guardian will have full authority over the IP’s personal and financial matters, and the guardianship will last for the IP’s lifetime, unless the court modifies or terminates it.

Article 81 guardianship

Article 81 guardianship is for adults who are incapacitated due to any cause, and who need a guardian to make some or all decisions for them. This type of guardianship is usually initiated by the IP’s family, friends, or professionals, and is based on the IP’s functional limitations rather than their diagnosis. The court will hold a hearing to determine the IP’s capacity and the need for a guardian, and will appoint a guardian only after finding clear and convincing evidence of the IP’s incapacity. The guardian will have only the powers that are necessary and appropriate for the IP’s situation, and the guardianship will last for as long as the IP remains incapacitated, unless the court modifies or terminates it.

Article 81 guardianship is more flexible and tailored to the specific needs and preferences of the IP. The court can grant the guardian only the powers that are necessary and appropriate for the IP’s situation, and can preserve the IP’s rights and abilities to the extent possible. For example, the court can authorize the guardian to make decisions about the IP’s personal needs, such as health care, living arrangements, and social activities, or about the IP’s property management, such as paying bills, managing assets, and entering into contracts. The court can also limit the guardian’s powers to certain areas or time periods, or require the guardian to consult with the IP or other parties before making decisions.

How to start an Article 81 guardianship proceeding?

To start an Article 81 guardianship proceeding, you need to file a petition in the Supreme Court or County Court in the county where the IP lives or is present. The petition is a legal document that explains why you believe the IP is incapacitated and needs a guardian, and why you are the best person to be the guardian. You also need to attach supporting documents, such as medical records, financial statements, and affidavits from witnesses.

The petition must be served on the IP and other interested parties, such as the IP’s spouse, children, parents, siblings, and close friends. The court will also appoint a court evaluator, who is an independent professional who will investigate the IP’s condition and circumstances, and a court-appointed attorney, who will represent the IP’s interests and wishes. The court may also appoint a guardian ad litem, who is a person who will act as the IP’s advocate and advisor.

What happens at the Article 81 guardianship hearing?

The Article 81 guardianship hearing is a formal and adversarial proceeding where the court will hear evidence and arguments from both sides. The petitioner, the IP, and their respective attorneys will have the opportunity to present their case, examine and cross-examine witnesses, and object to evidence. The court evaluator, the court-appointed attorney, and the guardian ad litem will also submit their reports and recommendations to the court.

The burden of proof is on the petitioner to show by clear and convincing evidence that the IP is incapacitated and that a guardian is necessary and appropriate. The court will consider the following factors:

• The IP’s functional level and understanding of the consequences of their actions and decisions
• The IP’s ability to manage their personal needs and property
• The IP’s preferences and wishes regarding their care and affairs
• The IP’s values and beliefs
• The availability and suitability of alternative arrangements, such as powers of attorney, health care proxies, trusts, and informal support networks
• The risks and benefits of appointing a guardian
• The qualifications and suitability of the proposed guardian
• The scope and duration of the guardianship

The court will make a decision based on the best interests of the IP, and will issue a written order that specifies the findings of fact, the conclusions of law, and the terms and conditions of the guardianship.

What are the duties and responsibilities of an Article 81 guardian?

An Article 81 guardian has a fiduciary duty to act in good faith and in the best interests of the IP. The guardian must follow the court order and exercise only the powers that are granted by the court. The guardian must also respect the IP’s rights and dignity, and involve the IP in the decision-making process as much as possible.

An Article 81 guardian has to perform various tasks and obligations, such as:

• Providing for the IP’s personal needs, such as health care, nutrition, hygiene, clothing, education, recreation, and socialization
• Protecting and managing the IP’s property, such as paying bills, collecting income, filing taxes, investing assets, and applying for benefits
• Keeping records and receipts of all transactions and expenditures
• Reporting to the court and the IP on a regular basis, or whenever there is a significant change in the IP’s condition or circumstances
• Seeking court approval before taking certain actions, such as selling or transferring the IP’s property, making gifts or loans, or changing the IP’s residence
• Cooperating and communicating with the IP’s family, friends, and professionals
• Participating in training and education programs

What are the challenges and pitfalls of Article 81 guardianship?

Article 81 guardianship is a complex and challenging process that requires a lot of time, effort, and money. Some of the common difficulties and drawbacks of Article 81 guardianship are:

• It can be emotionally stressful and upsetting for both the IP and the guardian, as it involves a loss of independence and privacy, and a change in roles and relationships
• It can be legally complicated and costly, as it involves hiring attorneys, filing petitions, serving notices, attending hearings, and paying fees
• It can be administratively burdensome and demanding, as it involves keeping records, reporting to the court, seeking court approval, and complying with rules and regulations
• It can be subject to abuse and exploitation, as the guardian may misuse or mismanage the IP’s property, neglect or mistreat the IP, or act against the IP’s wishes and interests
• It can be subject to disputes and conflicts, as the IP or other interested parties may disagree or challenge the guardian’s decisions or actions, or the court’s order or supervision

How to avoid or minimize the need for Article 81 guardianship?

Article 81 guardianship should be a last resort, and only used when there are no other alternatives that can adequately protect and assist the IP. Therefore, it is advisable to plan ahead and take preventive measures to avoid or minimize the need for Article 81 guardianship. Some of the possible steps are:

• Creating advance directives, such as powers of attorney, health care proxies, living wills, and trusts, that allow the IP to appoint trusted agents to make decisions and manage affairs for them in case of incapacity
• Establishing informal support networks, such as family, friends, neighbors, and community organizations, that can provide care and assistance to the IP in their daily living
• Seeking professional help, such as medical, legal, financial, and social services, that can address the IP’s needs and problems
• Consulting with an elder law attorney, who can advise the IP and their family on the options and implications of guardianship and other alternatives

Conclusion

Adult guardianship is a serious and complex matter that can have a profound impact on the lives of the IP and the guardian. It is not a decision to be taken lightly, and it requires careful consideration and preparation. If you are thinking about seeking or becoming an Article 81 guardian, I hope this blog post has given you some useful information and guidance. However, this blog post is not legal advice, and you should always consult with a qualified attorney before taking any legal action.

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Ghazala Siddique